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STATE SOVEREIGNTY. 



REBELLION AGAINST THE UNITED STATES BY 
THE PEOPLE OF A STATE 



IS ITS POLITICAL SUICIDE. 



JAMES A; HAMILTON. 



PUBLISHED BY THE EiYANCIPATION LEAGUE IN THE CITY OF NEW YORK. 



NEW YORK: 
BAKER & GODWIN, PRINTERS, 

PRINTING-HOUSE SQUARE, OPPOSITE CITY HALL. 
1862. 




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STATE SOVEREIGNTY. 



KEBELLION AGAINST THE UNITED STATES BY THE PEOPLE OF A 
STATE, IS ITS POLITICAL SUICIDE. 



It is proposed to discuss these great propositions 
with candor, and in a manner, it is hoped, which will 
tend to impress upon the public mind such clear views 
in relation thereto as that the arts of party politicians 
and demagogues may never again, by exciting feelings 
of State pride, sap the foundation of the people's loy- 
alty to their Government of the United States. 

In 1798, ambitious men, to promote a party triumph, 
induced numbers, and ultimately a majority of the people, 
to believe that the State Governments were in danger 
of destruction from the encroachments of the central 
Government. Then, and thus, was created " The States' 
Rights Party." 

This skillful effort of party strategy produced the 
famous resolutions of 1798, passed by the Legislatures of 
Virginia and Kentucky, proclaiming dogmas in relation 
to the powers of the States which, without a very forced 
construction, laid the foundation of Nullification by 
South Carolina in 1832, and culminated in the "Slave 
Barons'" Rebellion in 1860. 

This is the teaching of history. It is referred to 
now only as a warning voice, and to prepare politicians 
and partisans, as well as the people, not to receive the 
dogma of " State Sovereignty 1 '' as embracing a truth 
worthy of all acceptance, and of so sacred a character 
as to forbid questioning or examination. 



It is due to the distinguished men who proposed the 
resolutions of 1798, to say, they did not contemplate 
the dire consequences of their work ; and that one of 
them, during the period of nullification, took great pains 
to prove that those resolutions did not countenance the 
destructive and pestilent doctrine of secession. 
" The evil that men do lives after them.' 1 '' 
The following great truths and maxims in regard to 
government are stated because pertinent to this discus- 
sion: 

" The sovereignty and independence of the people began by a 
Federal act." 

" Sovereignty is the supreme, ultimate authority in a country." 

" Supreme authority is sovereign." 

" In this country, sovereignty is in the people." 

" The fabric of the American Empire rests on the solid basis of 
the consent of the people of America — the pure and original founda- 
tion of all legitimate authority." 

" In every government, there must be a supreme, absolute author- 
ity lodged somewhere." 

In our complicated system, "The General Government must not 
only have a soul, but strong organs by which that soul is to operate." 
" The soul is the people of the United Slates." The organs are found 
in that Government they have " ordained and established for themselves 
and their posterity.'''' 

Every government must establish " an undisputed organ of the 
public will." 

" All men are created equal. They are endowed by their Cre- 
ator with certain inalienable rights ; among these are life, liberty 
and the pursuit of happiness. To secure these rights govcrnments'are 
instituted among men, deriving their just powers from the consent of 
the governed. Whenever any form of government becomes destruc- 
tive of those ends, it is the right of the people to alter or abolish it, 
and to institute a new government." 

" The power of the majority and liberty arc inseparable ; destroy 
that, and this perishes." 

" A government ought to contain in itself every power requisite 



#6 



to the full acomplishment of the objects committed to its care, and 
the complete execution of the trusts for which it is responsible, free 
from every other control but a regard to the public good, and to the 
sense of the people." — Federalist. 

These are maxims to which every citizen of the 
United States will give his unhesitating and unqualified 
assent. 

We proceed, in order clearly to understand the rela- 
tions of the States to the United States Government, 
and the powers of each, to give a brief history of the 
rise and progress of the various governments to which 
we have been subjected. This will be interesting and 
instructive. 

On the 5th September, 1774, the deputies from all 
the colonies, except Georgia, assembled in a congress in 
Philadelphia. The object was, to state their grievances, 
as "subjects" and to appeal to the King and their 
fellow-subjects of England for redress. On the 20th 
October they adjourned to meet again on 10th May, 
1775, "unless their grievances were redressed in the 
mean time." 

On the 19th April, 1775, the war of the Revolution 
was begun by the battle of Lexington. On the 10th 
May following, the second Congress assembled at Phila- 
delphia. This Congress, in July, sent " a most loyal 
petition to the King, and a conciliatory address to the 
people of Great Britain." They, at the same time, pre- 
pared by vigorous measures for resistance. They voted 
to raise an army of twenty thousand men ; appointed 
Washington commander-in-chief; enacted articles of war ; 
bills of credit representing six millions of dollars were 
authorized to be issued ; a navy was commenced ; let- 
ters of marque and reprisal were issued. 

This Congress continued in permanent session, and 



on the 4th July, 1776, issued that immortal Declaration 
which made " the people of the colonies sovereign and 
independent," by which, as " one people," they assumed 
among the powers of the earth the separate and equal 
station to which the law of nature and of nature's God 
entitle them. " And they solemnly declared that these 
United Colonies are, and of right ought to be, free and 
independent States. And that, as such, they had full 
powers to levy war ; to contract alliances ; to establish 
commerce ; and to do all other acts which independent 
States may of right do." 

It is to be remarked, that this act of the Congress 
of 1776 was not only a Declaration of Independence, 
but it established a Provisional Government — a pure 
despotism — which, in obedience to the last maxim, on 
the 27th December appointed Washington Dictator, 
and conferred upon the delegates in Congress assembled 
full and absolute powers to levy war, and to do " all 
other acts and things which independent States may of 
right do." In short, it was made " the undisputed or- 
gan of the national will." 

This absolute Government continued from July, 
1776, until March, 1781. 

It will be remembered that " the Articles of Con- 
federation " were duly prepared and ready for signature 
on the 9th July, 1778, two years after the Declaration, 
and that they were ratified by the signatures of the 
delegates of the various States, from the 8th August, 
1778, down to March 1st, 1781. This being a compact 
bettveen sovereign States (in the second article it is de- 
clared that " each State retains its sovereignty, freedom 
and independence"), it consequently did not bind any 
one State until all the States parties to it had ratified 
it, which was not done by Maryland until 1781. 



&6 



Thus it appears that the first, a Provisional Govern- 
ment, one of absolute powers, was established on the 
4th July, 1776, and continued until March 1st, 1781 — 
a period of nearly five years ; and from that time until 
the adoption of the Constitution of the United States, 
in 1788, a period of seven years, we had a limited Gov- 
ernment of confederated States, each sovereign and 
independent, with constitutions of government formed 
by the independent and sovereign people of those States ; 
that in the formation of these State Governments, the 
people of each State invested their Government with as 
large a portion of their sovereignty as was necessary to 
the end in view, and they retained the power to alter 
or abolish their respective Governments according to 
their discretion. 

This historical statement of our several governments 
brings us up to the period when measures were taken 
to establish another and the actual government of the 
United States. 

On the 14th May, 1787, a convention of delegates 
assembled at Philadelphia, appointed by their respective 
State Governments, pursuant to a resolution of the Con- 
gress of the Confederation, in these words : " Resolved, 
That in the opinion of Congress it is expedient that, on 
the second Monday of May next, a convention of dele- 
gates, who shall have been appointed by the several 
States, be held at Philadelphia, for the sole and express 
purpose of revising the Articles of Confederation, and 
reporting to Congress and the several Legislatures such 
alterations and provisions therein as shall, when agreed 
to in Congress and confirmed by the States, render the 
Federal Constitution adequate to the exigencies of the 
Government and its preservation.' 1 

We give the resolution in full, to show that the sole 



8 

and express purpose of Congress, and of the Legislatures 
appointing delegates was, that the Government of the 
Confederated States should "be preserved and amended ; 
and to that end we add that the instructions to the del- 
egates, in most if not all cases, conformed to that purpose. 

We do this to give the advocates of State rights all 
its advantages, and to show that if such a Government 
was not framed, if the confederated Government was not 
preserved, it was not from misconstruction or accident, 
but under the influence of a clear conviction that its in- 
herent defect was incapable of being cured, and that it 
must, therefore, be proposed to be abolished. We say 
proposed, because the convention had no power to estab- 
lish a Government, but only to recommend a scheme 
for adoption. 

We now come to the consideration of the great 
questions — 

First. How was the Constitution of the United 
States formed ? 

Second. Who formed it ? 

Third. By whom was it adopted and ratified ? 

The convention was of delegates appointed and in- 
structed by twelve of the thirteen sovereign and inde- 
pendent States. (Rhode Island was not represented.) 

The first great question to be decided by the dele- 
gates was whether they would obey or disregard their 
instructions. They decided to disobey, and proceeded 
to form a new and very different Government from that 
which had called the convention into being. 

Two leading plans were submitted to the convention. 
One, " The Virginia Plan" which proposed to form a 
General Government, independent of the control of the 
States. The other proposed to amend the Articles of 
Confederation" and thus to leave the General Govern- 



*7 



9 



ment dependent upon the State Governments, as it was 
before. 

The great and leading question was thus distinctly 
presented for decision ; and after long, earnest, and anx- 
ious discussion, the plan of a confederacy was discarded, 
and the convention proceeded to devise the form of a 
constitution of government, in the name of, and to which 
the whole people of the United States were the parties. 

" We, the people of the United States, in order to 
form a more perfect union, establish justice, insure do- 
mestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and 
establish this Constitution for the United States of 
America." 

Language could not more distinctly mark the funda- 
mental difference between these instruments. The first 
was made, as clearly as language could do so, " a league " 
— an agreement — a confederation between sovereign 
States. It was formed by the Congress which was the 
organ of those States. It was sanctioned by the Legis- 
latures of the several States, and not by the people 
thereof. 

Whereas, the second was declared to be a constitu- 
tion. It was " ordained and established by the people 
of the United States, for themselves and their posterity? 
It was, in despite of instruction and the resolution of 
Congress, directed to be submitted to a convention of 
delegates chosen in each State by the people thereof." 
All this was done, and this constitution of government 
so formed was ordained and established by the people, 
through their delegates in conventions held in the differ- 
ent States. 

It has been remarked that the sovereign and inde- 



10 

pendent people of the States formed their State Govern- 
ments, making them sovereign and independent States, 
as they certainly were, and in the Articles of Confeder- 
ation they were so declared to be. 

The Constitution for the United States prepared by 
the convention of 1787, made "the States essential and 
component parts of the Union, 1 ' " necessary to the form 
and spirit of the general system." In doing this, their 
sovereignty and independence were merged, and made 
subordinate to that system. The Constitution necessa- 
rily and properly "left with the State Governments 
those residuary authorities which were judged proper 
for local purposes " under it. The civil and domestic 
concerns of the people were to be governed by the laws 
of the respective States. 

It is undeniable that in all mixed systems there must 
be a control somewhere. Either the general interest is 
to control the particular interest, or the contrary. If the 
former, then certainly the Government was so formed as 
to render the power of control efficient to all intents and 
purposes. If the latter, a striking absurdity follows. 
Whatever constitutional provisions are made to the con- 
trary, every government will at last be driven to the 
necessity of subjecting the particular to the universal 
interest. In obedience to this necessity, — in order that 
the varying interests of a State and a General Govern- 
ment might not clash, — it became the duty of wise men 
so to frame a scheme of government for the whole peo- 
ple as that there should not be two sovert igrvtit s moving 
in the same sphere. 

They consequently proposed to abolish the sover- 
eignty and independence of the States, and at the same 
time they deemed it " necessary that all of the every- 
day rights of property, of social arrangements, of mar- 



11 

riage, of contracts, — every thing that makes up the life 
of a social community, — should be under the control, not 
of a remote or distant authority, but of one that is lim- 
ited to, and derives its ideas and principles from, a local 
community." — ( William M. Ukarts.) 

We have said the proposed constitution of govern- 
ment contemplated the abolition of State sovereignty. 

This position will be found to be sustained by a 
critical examination of the sovereign powers attributed 
to the General Government and denied to the State 
Governments by the Constitution proposed for the 
adoption of the people. 

The people of the United States have formed a Gov- 
ernment with "an undisputed organ of the national 
will," which is known to the nations of the earth as 
having all the attributes of a sovereign and independent 
power. Thus the State Governments collectively were 
once known ; and as such they formed treaties with for- 
eign powers. Are they individually or collectively so 
recognized at present ? They certainly are not. Why % 
Because when the Constitution of the United States 
was established they descended from that superior con- 
dition. This is the fact ; and such is the judgment of 
mankind. 

There cannot exist in the same government two 
superiors, because " supreme authority is sovereignty," 
and " two powers cannot be supreme over each other." 

Washington, in his letter addressed to Congress, 
17th September, 1787, as President of the Convention, 
says: "It is obviously impracticable, in the Federal 
Government of these States, to secure all the rights of 
independent sovereignty to each, and to provide for the 
safety and interests of all. In all our deliberations 
on this subject, we kept steadily in our view that 



12 • 

which appears to us the greatest interest of every true 
American, — the consolidation of our Union, in which is 
involved our prosperity, political safety, and perhaps 
our national existence." 

In order to " the consolidation of our Union" the 
States gave up the following sovereign rights and con- 
ferred them upon the Government of the United States, 
viz. : 

"The right to lay and collect taxes, duties, im- 
posts, and excise ; to borrow money on the credit of 
the United States ; to regulate commerce with foreign 
nations and among the several States, and with the In- 
dian tribes." 

Under the last grant of power, the State Govern- 
ments cannot decide what persons or property shall be 
brought within the domain of any State. They cannot 
give any exclusive right to their own citizens to navi- 
gate their own and coterminous waters. They cannot 
authorize a bridge to be built across a stream within 
their own borders where the tide ebbs and flows. 

The United States can regulate the commercial in- 
tercourse of the citizens of any State with foreign pow- 
ers or any other States, and inhibit such intercourse 
with foreign countries for an indefinite period. Wit- 
ness the embargo of December, 1807, which continued 
for eighteen months. This exercise of the "restrictive 
energies " of the Government (as they were called) was 
to recommend a theory, which, at that time, had very 
respectable advocates, that the United States would 
become a more prosperous and happy nation if they 
would forego, altogether and forever, all foreign com- 
merce, and thus promote the great agricultural interests. 

" To establish an uniform rule of naturalization." 
Under this exclusive grant the Federal Government 



#9 

13 

has the power to confer the rights of citizenship upon 
whom, and as it pleases, in every State of the Union, 
and thus give to such citizen, in common with all the 
other citizens of any State, all " privileges and immu- 
nities of citizens in the several States." 

"To establish uniform laws on the subject of bank- 
ruptcy." " To coin money, regulate the value thereof 
and of foreign coins." These powers are the highest 
attributes of sovereignty. They are given exclusively 
to the General Government. The right to coin money 
by the States was recognized, by the Articles of the 
Confederation, to belong to the States. 

The power to establish a Bank of the United States 
is an incidental power, so adjudged by the Supreme 
Court of the United States, and declared by Mr. Madison 
in one of his messages to Congress. Another and vastly 
important incidental power, which comes home to the 
business and interest of every citizen, is the currency of 
the country. Mr. Madison, in his message of 1815 r 
recommended the inquiry whether "the notes of the 
United States should be issued,' upon motives of gen- 
eral policy, as a common medium of currency ;" and in 
his message of 1816 he says: "The Constitution has 
intrusted Congress exclusively with the power of creat- 
ing and regulating a currency of that description ■." 

" To fix the standard of weights and measures." An 
exclusive power which enters into the traffic and every- 
day domestic concerns of the people of every State. 

"To establish post-offices and post-roads." This 
gives to the General Government the exclusive power 
to establish post-offices, mails, and letter-earners in 
every city, town, county, and State of the United States ; 
and to build roads over any part of any city, town, or 
place of any State ; and it consequently gives the right 



14 

of eminent domain, in such cases, to the General Gov- 
ernment. 

" To promote the progress of science and useful arts, 
by securing to authors and inventors exclusive rights." 
An exclusive power which comes home to all the peo- 
ple of all the States. 

" To define and punish piracies and felonies on the 
high seas, and offences against the laws of nations." 
Exclusive sovereign powers. 

" To declare war, raise and support armies." These 
are ranked among the highest attributes of sovereignty ; 
they are exclusive, and they grant to the General Gov- 
ernment unlimited power over the lives and property 
of the people of the States, by compelling them, if need 
be, to become soldiers ; and, by taxation, to yield up 
their property to the public service ; thus giving to it 
the absolute control of persons and property, which are 
inaptly said to be peculiarly the objects of State con- 
cern and protection. 

The clauses respecting the militia — the bulwark of 
* civil liberty and popular government — are most signifi- 
cant: 

"Congress shall have power" — "to provide for call- 
ing forth the militia to execute the laws of the Union, 
suppress insurrections, and repel invasions.' 1 

" To provide for organizing, arming, and disciplining 
the militia, and for governing such parts of them as may 
be employed in the service of the United States, reserv- 
ing to the States respectively the appointment of the 
officers, and the authority of training the militia accord- 
ing to the discipline prescribed by Congress." 

The only power left to the States over this impor- 
tant element of power is to be found in the reservation, 
to wit, " the appointment of the officers," " and the au- 



15 

thority of training the militia according to the discipline 
prescribed by Congress." In effect, all the power re- 
served to the State Governments over their civic sol- 
diers is to prepare them for the use of the supreme 
Government, to be called for by that Government to 
suppress insurrections of the people " in such State or in 
any other State." In short, to place at the disposal of 
the supreme power a disciplined army, composed of the 
people of each and all the States between the ages of 18 
and 45 years. (Act of 1*792.) 

"No State shall enter into any treaty, alliance, or 
confederation, coin money, emit bills of credit, make 
anything but gold and silver a legal tender." The 
writ of habeas corpus may be suspended by the Gen- 
eral, not the State Governments. 

The power to pass " bills of attainder or ex post 
facto laws " is forbidden to the States, by the Constitu- 
tion of the United States, as well as to the General 
Government. 

" No tax or duty shall be laid on articles exported 
from any State." This inhibition is made by the Con- 
stitution of the United States on both Governments. 

The exception in section 10, art. 1, goes strongly to 
prove the absolute subordination of the powers of the 
States to the United States. It is in these words : 
" No State shall, without the consent of Congress, lay 
any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its in- 
spection laws ; and the net proceeds of such duties 
shall be for the use of the Treasury of the United 
States. And all such laws shall be subject to the revis- 
ion and control of the Congress.' 1 '' We have italicized the 
last branch of this clause as decisive of the question of 
the sovereignty of the States. 



16 

Inspection laws are purely municipal regulations ; 
they touch " the every-day institutions, the social arrange- 
ments of the community ; " they control their domestic 
affairs. A State cannot lay any imposts or duties to 
execute their inspection laws ivitJiout the consent of 
Congress, and as an additional humiliation, although 
the power so to legislate by a State depends upon the 
consent of Congress of the United States, " all such laws 
shall be subject to the revision and control of Con- 
gress.^ 

Another and a most marked evidence of the subor- 
dination of the Legislatures of the States, is found in 
the following language : 

" No State shall, without the consent of Congress, lay 
any duty of tonnage, heep troops or ships of war in time 
of peace, enter into any agreements or compact with an- 
other State or with a foreign power. 11 

In connection with this stern inhibition, — this clear 
denial of the sovereignty of the States, — this direct sub- 
mission of the legislative power of the State to the will* 
of Congress, — it becomes us to recollect that the people 
of the United States ordained and established this Con- 
stitution in order to form a " more perfect union 11 as 
the Union had been made " perpetual 11 This purpose 
could have had no relation to the duration of the Union 
of the States. It meant something more ; it was in- 
tended to make the Union more perfect by prohibiting 
to the States the means which might be used for its 
destruction. 

An army or a navy, or combinations by "agree- 
ments or compacts" between States, or with foreign 
powers, would give great power to rebellious States, or 
people, in their efforts to destroy the Union, and in their 
resistance to the efforts of the General Government to 
preserve it. 



^7 

17 

Another declared purpose was " to ensure domestic 
tranquillity." 

These inhibitions are not only direct and palpable 
abrogations of the rights and sovereignty of the States 
in these respects, but they clearly indicate that the peo- 
ple of States might attempt to disturb the " domestic 
tranquillity," or to break up the Union by secession ; 
and if they did so, that the United States had the right 
and the power (the States being without troops or 
ships of war, or the strength to be derived from combi- 
nations among themselves or with foreign powers) to 
restore " domestic tranquillity," and preserve the Union 
by force of arms. 

In this view of this clause, it is worthy of remark 
that by this denial to the States of the right to keep 
troops and ships of war in time of peace, the United 
States might lose a powerful auxiliary in preparing for 
war. 

The great State of New York, if permitted to keep 
up a considerable military and naval force at her own 
expense, might render essential assistance to the United 
States, in arming forts, preserving the frontiers from the 
inroads of savages, and in repelling the attacks of a 
public enemy. 

All this was well understood by the sagacious states- 
men who made these clauses a part of the Constitution. 
They also clearly foresaw, and we know they greatly 
feared, attempts at disunion. Balancing the two, they 
wisely, in order to diminish the latter evil, yielded the 
former advantage. 

Can it be said, in the face of these inhibitions, that 
the Government has not the constitutional right, nay, 
that it is not its absolute duty, by coercion, to put down 
rebellion by the people of any State or government ? 



18 

He reads the Constitution with a very indistinct ap- 
preciation of the meaning and intent of these clauses, 
who will maintain State sovereignty or the right of 
secession. 

We might upon the fact of this appropriation of all 
the essential attributes of sovereignty to the United 
States Government, and their denial to the States, 
rest our assertion that, by this scheme of a Constitution 
for the United States, State sovereignty was abolished. 

But, in our endeavor to exhaust the subject, we 
proceed to show, that the States cannot, with appro- 
priate language, be called sovereign and independent 
States, even within their appropriate sphere. 

By article 4, section 1, it is provided, that "full 
faith and credit shall be given in each State to the pub- 
lic acts, records, and judicial proceedings of every other 
State ;" and to Congress is given the power " to pres- 
cribe the manner in which such acts, records, and judi- 
cial proceedings are to be proved, and their effects." 

Upon examining the effect of this clause, it will be 
found t<> subordinate the judiciary of the one State to 
that of another. Thus, a citizen of New York goes to 
Georgia ; he is sued there, a judgment rendered against 
him for a given sum of money. It may be groundless, 
although according t<» the laws of proceeding and the 
rules of evidence of the latter Slate. We put a strong 
case. The defendant returns to New York. The plain- 
till' commences a -nit in the Supreme Court of that 
State. The case eoines on for trial. The record of the 
judgmenl rendered by the court of Georgia is "proved" 
according to the act of Congress, and the court of New 
York musl give judgmenl thereon. 

We do not question the expediency of such a pro- 
vision, but we aver that it is "tie clearly inconsistent 



19 

with tlie idea that each State possesses sovereign powers 
in its domestic affairs, or even so far as to control its 
judicial action. 

Section 2 : " The citizens of each State shall be enti- 
tled to all the privileges and immunities of citizens in 
the several States." The Congress of the United 
States has the exclusive power of naturalization ; that 
is, to give the privileges and immunities of citizens to 
such persons as it pleases, and upon such terms as it 
may choose; and such naturalized citizens are, perforce 
of this sovereign power, made citizens of all the States. 
This presents a peculiar case. The State Governments 
are said emphatically to have the control of " the every- 
day institutions, oj)erations, and social arrangements of 
their community," and yet they have no power to decide 
what persons shall be members of their communities ! 

It is absurd to attribute to a State sovereign powers, 
and at the same time to declare that she has no right to 
say what kind or description of persons shall or shall 
not participate in the "privileges and immunities" 
given to her citizens by her laws. 

Section 3, article 4, declares that " new States may 
be admitted by Congress into the Union." The States- 
rights party insist that ours is a confederacy of sover- 
eign and independent States ; and yet no one of these 
sovereigns, nor all of them combined, has the power to 
decide what people, State, or country shall or shall not 
be one of their associates, and thus participate with 
them in the government of their country, in its glory or 
advantages. 

It is believed when the people conferred these sover- 
eign attributes upon the General Government, they rel- 
egated all essential sovereign rights and powers from 
their State systems. 



20 

Section 4 : " The United States shall guarantee to 
every State in the Union a republican form of govern 
ment." When the people of the respective States thus 
empowered the Government of the United States to give 
them a j^articular form of government, which is the true 
meaning of the clause of guarantee, they certainly ad- 
mitted that the United States possessed the supreme 
ultimate authority in the country, and that the States 
did not, in respect to the people of the States, possess 
such authority. 

The people of the States, as such, gave up, in regard 
of their State Governments, that fundamental right recog- 
nized by the maxim that " every nation has a right, in 
its own discretion, to change its own form of govern- 
ment, to abolish it and substitute another." In this 
case, the people of the States gave up the right to alter 
their government from a republican to a pure democracy, 
to a monarchy, or to a despotism. 

They admitted that they could not, so long as the 
Government existed, be subjected to any other than a 
republican form of government ; and thus far the peo- 
ple of each State yielded their sovereignty and inde- 
pendence to the people of the United States. 

We close this examination of the scheme of govern- 
ment which was j)repared by the Convention of 1787, 
to be submitted to the people of the United States for 
their adoption, under the conviction that it has been 
made with candor, and that it has resulted in proving 
there is no solid foundation for the belief that the actual 
government of our country is a confederacy of sovereign 
and independent States, in any sense of the terms ; but 
with a clear conviction that the State Governments, 
instead of being "free, sovereign and independent 
States," as they certainly were when they ratified the 



21 

Articles of Confederation, became by the present Con- 
stitution component and essential parts of the General 
Government; the object of State Governments being 
merely civil and domestic, " to support the legislative 
department of the United States, and to provide for the 
administration of the laws." 

Our next duty is to show how the Constitution pro- 
posed by the Convention was disposed of and adopted, 
and how the State Constitutions were adapted to their 
new condition in relation to the new government. 

The Convention agreed upon the form of the Con. 
stitution, which was signed by the delegates on the 17th 
September, 1787, and, with the letter of the same date 
from Washington, addressed to the President of the 
Congress, was sent to that body then assembled in Phil- 
adelphia, pursuant to a resolution of the Convention, 
directing it "to be laid before the United States in 
Congress assembled," and expressing the opinion that it 
should afterward be submitted to a convention of dele- 
gates, chosen in each State by the people thereof, for their 
assent and ratification. 

It was submitted to Congress on 28th September. 
That body sent copies of it to the State Legislatures ; 
and the people of the several States were called upon to 
elect delegates to conventions to be held on designated 
days and places in each State ; which they did ; and be- 
tween the 7th December, 1787, and 21st November, 1788, 
the people of all the States, except Rhode Island, assent- 
ed to and ratified the Constitution of the United States 
of America, as it was prepared by the Convention and 
submitted to the respective State Conventions, without 
alteration. And thus did the people of the United States 
of America ordain and establish this Constitution of the 
United States of America. And thus does " the fabric 



22 

of the American Empire rest on the solid basis of the 
consent of the people of America, the pure and original 
foundation of all legitimate authority." — (Federalist^) 

We have asserted, and we believe we have proved, 
that the respective States ceased by that act to be 
sovereign and independent ; that they became, " in spirit 
and in form, component parts of the Government of the 
United States ;" that their constitutions were materially 
altered, in order that they might conform to their 
changed and subordinated condition. 

These State constitutions were originally formed by 
the people of the States, in their independent and sover- 
eign capacity, through conventions of delegates elected 
by the people, and assembled for that purpose; and 
they were altered by the same people through the same 
agency. 

When the people of a State elected their delegates 
to a convention, with full power to reject or adopt the 
constitution of government presented for their deliber- 
ation, which directly by its very terms, and inferen- 
tially and necessarily by its spirit and import, essen- 
tially changed their respective State constitutions, their 
delegates were thus authorized by the people of the 
States, if upon full- deliberation they should adopt the 
Constitution of the United States, so far to change their 
State constitutions as would be required to conform 
them to the altered condition of their respective States. 
They did so ; and thus we find that such changes, radi- 
cal as they were, were made by the authority of the 
sovereign loill. 

We cite two strong cases to show the changes thus 
made, and we aver that the subsequent action of both 
Governments shows that they received the full approval 
of the Government and people. 



23 

By clause 2d, article 6th, it is declared : " This Con- 
stitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United 
States, shall be the supreme law of the land ; and the 
judges in every State shall be bound thereby, any thing 
in the constitution or laws of any of the States to the 
contrary notivithstanding? 

It must be admitted that before the Constitution 
was adopted by the people of the United States, the 
State constitutions and laws were the supreme law of 
the land within their respective jurisdictions, and that 
the judges in every State were controlled thereby. It 
must also be admitted that as soon as the Constitution 
of the United States was established, its Constitution, 
laws, and treaties were superior to the constitutions 
and laws of the States, and that thus a change was 
made by the people of the several States of their re- 
spective constitutions, in order that they might be in 
conformity with this new and sovereign power. 

Again, by the 3d clause of the same article, it is 
declared that the members of the several State Legis- 
latures, and all executive and judicial officers of the 
several States " shall be bound by oath or affirmation 
to support this Constitution." This was so essential a 
change of the constitutions of the several States as to 
forbid those who were the recognized organs of these 
Governments to act, until they had taken that oath ; 
and that thus not only the soul of each State Govern- 
ment was, but that the organs through which that soul 
acted were, made obedient to the Federal Constitution, 
and that such organs could exist only in obedience to 
its commands. 

We hold, in conclusion, that as the Constitution of 
the United States was the work of the people of the 



24 



United States of America, they, and they alone, have 
power to alter or to abolish that constitution of govern- 
ment. When we say the People, we mean the people 
of the United States, not the people of a State or many 
States, constituting less than a majority of the whole 
people. 

EEBELLION AGAINST THE UNITED STATES BY THE PEOPLE 
OF A STATE IS ITS POLITICAL SUICIDE. 

The necessary consequences of this condition of the 
people and governments of the States in relation to the 
General Government is, that when the people of a State, 
not a mere faction, rise up in rebellion against the Gov- 
ernment, and use the organs of their State to destroy 
the Government of the United States, they destroy the 
organism of their State Government, and thus accom- 
plish the political suicide of their State Government. 
The soul of the State remains, but its organs are de- 
stroyed. The latter cannot act as organs, because they 
cannot take the required oath, and cannot perform their 
duty to the supreme power in obedience to the com- 
mands of the Constitution of the United States. 

It must be admitted that the question whether the 
State Governments in rebellion are abolished or not, is 
a very difficult one. We approach it with diffidence. 
The question in the outset is, What is a State ? The 
aggregation of a people as a community is not a State 
until they have " established & public authority, to order 
and direct what is to be done by each in relation to the 
end of the association. This political authority is the 
sovereignty, and he or they who are invested with it 
are the sovereign? When this is done, there is a " body 
politic, or State. 11 — ■( Vattel.) 

We have high authority for asserting that when the 



25 

Constitution of the State of New York was formed, 
" the sovereignty of the people, by our Constitution, was 
vested in their representatives in senate and assembly, 
with the intervention of the Council of Revision." This 
was the " public authority" of the State of New York. 
The like may be properly said of the other State Gov- 
ernments before the existing Government of the United 
States was adopted by the whole people. By that act, 
as we have seen, the State Governments, and the people 
thereof, were made component parts of the Government 
of the United States, and the essential attributes of 
their sovereignty were vested in the latter Government. 
It is the " undisputed organ of the public tvilV This is 
the state of facts upon which this important question 
arises. 

It is a maxim of universal acceptance, that " the 
people, in their discretion, have a right to alter or abol- 
ish one government and to establish another." And it 
is therefore true that the people of the United States, 
who established the Government of the United States, 
have the right to alter or abolish that Government ; and 
equally so that the ])eople of one or several States have 
not that right. 

It is also true that the people of the several States 
have the right to alter their several State Governments, 
with these limitations : 1st. That such alterations do 
not change their relations to the Government of the 
United States, or in any respect impair the rights or 
powers of that Government in relation to the people or 
governments of the States ; and 2d. That they shall es- 
tablish a republican government. Thus far, the people 
of each State have, by uniting with the people of all 
the other States, and thus forming that " body politic!'' 
which is, and is known as, the People and Government 



26 

of the United States, divested themselves of plenary 
power over their State Governments. 

Under and by virtue of the powers vested by the 
Constitution of the United States in its Government, 
that Government has the absolute possession of all the 
domain within its borders ; and it has full sovereign 
power over all the people of the United States, in all 
those respects, and to those ends and purposes for 
which it was formed and established. 

From these positions, it is clear that the Government 
or the people of a State have no right or power to with- 
draw from the Government of the United States ; and 
that when the people of a State rise in rebellion against 
the Government of the United States, and make use of 
their State Governments as their instruments to destroy, 
by force, the Government of the United States, they 
are guilty of " high treason. 11 The people of such State, 
or all those who unite in such a purpose are Teaitoks, 
and as such they forfeit life and property, and all rights 
of every kind. Blackstone says : " The natural justice 
of forfeiture or confiscation of property for treason is 
founded in this consideration : that he who has thus 
violated the fundamental principles of government, and 
broken his part of the original contract between king 
and people, hath abandoned his connection with society, 
and hath no longer any right to those advantages which 
before belonged to him purely as a member of the com- 
munity." 

If this be a correct view of the position of traitors, 
can it be with propriety said that men so circumstanced 
can be considered as the " public authority " of a " body 
politic" \ Is it possible that they can individually or 
collectively possess the attributes of any power to " or- 
der and direct what is to be done by each in relation 



21 

to the end of the association," which is " to promote 
their mutual benefit and advantage" ? How can a State 
Government be said to exist when the people of the 
community, including those who were invested with 
the functions of government, have " abandoned all their 
connections with society " ? It is a strange paradox to 
insist that the governments of the people who have 
attacked, with great power, the national life, and who, 
in every form, by word and deed, declare their purpose 
to do so, still form a part of that nation. 

As State Governments they no longer exist ; as a 
people, they form a part of the whole people of the 
United States, owino; obedience and allegiance to its 
Government, and must be reduced by force " into subor- 
dination to the laws." 

That provision of the Constitution of the United 
States which guarantees to every State a republican 
government, necessarily admits or assumes, as a matter 
of fact, that the people of a State may abolish their 
existing republican State Governments. To establish 
another form of government, — a monarchy, an autocracy, 
or despotism, — necessarily implies that they have abol- 
ished their existing republican government." 

This suggestion is presented in answer to the opin- 
ions entertained by very respectable authority, that the 
State Governments cannot be destroyed or abolished by 
any act of the people of the State ; and in support of 
that opinion, it is averred that as long as there is any 
number, however small, of those who are favorable to 
the existing State Government, that Government neces- 
sarily exists. This view certainly ignores the great 
principle of popular government, that the majority of 
the people must rule, — that the will of the majority 
gives the law to the whole. 

The Administration, by several acts, seem to admit 



28 

that the States in rebellion have abolished their gov- 
ernments. 

A military government has been appointed for Ten- 
nessee. Andrew Johnson, in his appeal to the people, 
says : " The State Government has disappeared, the 
Executive has abdicated, the Legislature has dissolved, 
the judiciary is in abeyance." " In such a lamentable 
crisis" (the people of the State without a government) 
" the Government of the United States could not be un- 
mindful of its high constitutional obligation to guaran- 
tee to every state in this Union a republican form of 
government." "This obligation the National Govern- 
ment is now attempting to discharge. I have been ap- 
pointed, in the absence of the regular and established 
State authorities, a military governor for the time be- 
ing." 

We infer from the language of this appeal, — which 
we must believe correctly represents the views of the 
President and his Cabinet, because we cannot suppose 
Governor Johnson would have been sent to Tennessee 
without having precise instruction, — indeed, it may well 
be presumed, as a matter of wise precaution, — that this 
appeal had received the approval of the Government. 
It speaks of the " performance by the Government of 
its constitutional duty to the State," under the guaran- 
tee clause. It declares "the State Government has dis- 
appeared," and consequently that the Government of 
the United States was to perform its constitutional 
obligations by giving to the people a government of a 
republican form. 

If the former State Government was not abolished 
by the rebellion of the people, then that Government 
still exists ; and then there was no constitutional obli- 
gation to give the loyal people another government. 

As the Governor had abdicated and the Legislature 



29 

was dissolved, all that was necessary was, that a Gov- 
ernor and Legislature should be elected under the pro- 
tection of the power of the United States, by the loyal 
people of the State. Such abdication and dissolution 
do not invoke the exercise of the power of the United 
States under the guarantee clause. 

We entertain no doubt whatever, that it is the duty 
of the Government to establish provisional governments 
in all the rebellious States. Under the conviction that 
by the energy of the Executive, the skill of our gen- 
erals, and the bravery of our soldiers, this cruel war, so 
far as it respects the action of large armies, will be 
shortly terminated by our glorious victories, we believe 
the Government will be driven to the conclusion that 
the people in rebellion have destroyed their govern- 
ments, and the only means of restoring to the Union- 
men of those States the protection of regular govern- 
ments, and to the citizens of other States their rights 
and privileges in those States, will be by establishing 
territorial governments for the peoj)le of all States in 
the rebellion. 

It is not improbable that the traitors, when their 
armies are vanquished and their assumed governments 
are dispersed, will perversely refuse to return to a due 
subordination to the laws of the United States. 

It is always to be remembered in regard to the 
States in rebellion, that they form a part of the domain 
or territory of the United States ; that " the United 
States is the sovereign in possession, and that the peo- 
ple of the State (in rebellion), once one of the United 
States, are not." 

The people of Western Virginia, holding the opin- 
ion that their State Government was abolished by the 
treason of the people in other parts of the State, with 
the organs of that Government have formed another 



30 

government, which has been recognized by the United 
States as the existing government of that State. 

EMANCIPATION. 

The President, in his most admirable proclamation, 
recommended to the people of the United States to im- 
plore spiritual consolation in behalf of all who have 
been brought into afflictions by the casualties and ca- 
lamities of sedition and civil war. 

The Secretary of War, in his general order, dated 
April 9, 1862, ordered thanks to be given to the Lord 
of Hosts in delivering this nation, by the arms of pat- 
riot soldiers, from the horrors of treason, rebellion, and 
civil war. 

We have thus the highest authority for saying that 
we are engaged in a civil war, which Vattel (Book 3, 
chap. 13, § 295) and other authoritative publicists 
declare is a public war. " The war between the two 
parties stands on the same ground, in every respect, as 
a public war between two different nations." " They 
decide their quarrel by arms, as two different nations 
would do. The obligation to observe the common laws 
of war toward each other is, therefore, absolute." When 
the blockade of the rebel ports was declared, France and 
Great Britain decided that both parties, being public 
enemies, were entitled to the rights of belligerents. 

We refer to the fact that our Government, by ex- 
changing prisoners, has treated this as a public war. 
This is assuredly the common sense view of this sub- 
ject, and we rejoice that it is thus authoritatively set- 
tled, because decisive consequences must follow in regard 
to slavery, under the laws of war. 

It is well settled (see Vattel, Book 3, chap. 9, § 165, 
Booty) that when an army advances into the country 
of its enemy, "the established laws of war give to an 



ol 

enemy the use and enjoyment of real property of which 
he obtains possession," and the absolute ownership of 
all personal property which falls into his hands. The 
latter is called booty, and, except ships, becomes vested 
in the captors the moment they acquire a firm posses- 
sion." With regard to ships, by the general rules of 
maritime law, condemnation is necessary to the complete 
investment of the property in the captors. Wheaton's 
Elements, <fcc., p. 432, may be referred to in support of 
this rule, with the authorities to which he refers. 

" Negroes, by the laws of the States in which slavery 
is allowed, are personal property. They, therefore, on 
the principle of those laws, like horses, cattle, and other 
movables, are liable to become booty, and belong to 
the enemy as soon as they come into his hands." 

" Belonging to him, he was free to apply them to 
his own use, or set them at liberty. If he did the lat- 
ter, the grant was irrevocable ; restitution was impossi- 
ble." " Nothing in the laws of nations will authorize 
the resumption of liberty once granted to a human 
being." — (Hamilton.) 

Vattel, § 162 — " We have a right to deprive an 
enemy of his possessions; of every thing that may aug- 
ment 'his strength, and enable him to make war. This 
every one endeavors to accomplish in the manner most 
suitable to him." The slaves augment the strength of 
an enemy ; we, therefore, have the right to take and 
tree them. 

Apply these well-settled laws of war to the course 
of the advance of our armies into the enemy's country, 
and absolute, immediate emancipation follows, in regard 
to all persons held as property by the laws of the rebel 
States. 

To allow slaves thus falling into our hands, or which 



32 

have been induced to come into our camps as an asylum 
to the oppressed, " to fall again under the yoke of their 
masters, and into slavery, is as odious and immoral a 
thing as can be conceived. It is odious because it brings 
back to servitude men once made free." 

Apply this to the case of the negroes who, in South 
Carolina, are now taken care of by the Government, 
and treated as free men. They form " a colony of civili- 
zation " in that State. 

We close this too much extended examination with 
the following, from Blackstone, upon the laws of nature 
as they effect the liberty of man : 

" The Deity has constituted an eternal and immutable law, which 
is indispensably obligatory upon all mankind, prior to any human 
institution whatever. This is what is called the Law of Nature, 
which, being coeval with mankind and dictated by God himself, is of 
course superior in obligation to any other. It is binding over all the 
globe, in all countries, and at all times. No human laws are of any 
validity contrary to this ; and such of them as are valid derive all 
their authority mediately or immediately from this original." 

We give a commentary, written in 1775, by Ham- 
ilton : 

" Upon this law depend the natural rights of mankind. The 
Supreme Being gave existence to man, together with the means of 
preserving and beautifying that existence. 

" He endowed him with rational faculties, consistent with his duty 
and interest, and invested him with an inviolable right to personal 
liberty and personal safety." * * * 

"Natural liberty is a gift of the beneficent Creator to the whole 
human race." * * * " Civil liberty is founded on that, and can- 
not be wrested from any people without the most manifest violation 
of justice. Civil liberty is only natural liberty modified and secured 
by the sanctions of civil society. It is not a thing in its own nature 
precarious and dependent On human will and caprice; but it is con- 
formable to the constitution of man. as well as necessary to the tvell- 
Ih imy of society." 

April, 1862. JAMES A. HAMILTON. 

,3 D ' ' 



